CA Trust, Estate & Probate Litigation

CA Trust, Estate & Probate Litigation

Do California Estate Plans Really Protect You When You need Them To?

Posted in Litigation, Planning

Do Estate Plans Really Protect You From


Do estate plans really protect you when you need them to? Yes and no.

In a perfect world, an estate plan is all you need to provide for your care and well-being when you lose the capacity or ability to care for your own finances. And for some people, this works great because they have loving (and non-manipulative) family members who all get along and agree on the correct course to take.

And then there’s the other side of the coin, where an estate plan does not work so well because family members do not agree. Or worse, a family member is manipulative or making decisions and changing documents to protect his or her own financial interests rather than caring for the elder’s well-being.

While things like revocable Trusts, durable powers of attorneys, and health care directives work great when all is well, they are not as useful when someone is taking advantage of an elder. In fact, an abuser often will have new documents signed that give them the power to control the health or finances of an elder.

When confronted with disaster, the only way to protect an elder is to file for conservatorship.  A conservator is a court appointed person who steps into the elder’s shoes and becomes the only person with the legal authority to make health and finance decisions on behalf of an elder.

But wait, isn’t an estate plan created to avoid conservatorships? Yes, but when someone is being manipulative or abusive, the court process is the only way to protect an elder. Once a conservator is appointed, he or she can take steps to protect the elder, provide proper medical and health services, and look over the finances. Also, in the context of a conservatorship action, the Court can invalidate any health care directives or durable powers of attorney that harm the elder.

Is estate planning still worthwhile? Yes, absolutely because without a plan you will most definitely end up in court. And a majority of estate plans work well to avoid court intervention. But when estate plans go awry, the court system is the only answer to protect an elder from abuse.

How Accurate Must a California Trust Accounting Have to Be?

Posted in Trust Administration, Trustees & Beneficiaries

Finding Balance...

How accurate does a Trust accounting have to be in order to be approved by the Court? I always say that every accounting balances, it is just a matter of finding the right information. Still, it can be frustrating to put together a year or two (or three or four) of information and not have the accounting balance.

A Trust accounting is a very unique thing. It is unlike any other type of accounting (and very much unlike a corporate accounting). But Trust accountings are also easy to understand—in theory.

Trust Accountings start with the charges—those are the list of things that come into the Trustee’s possession (what the Trustee is charged with possessing). The first charge includes all the assets on hand when the accounting begins. Then you add in all income received and any gains on the sale of assets. Each of these items has a separate schedule showing the detailed information. You then total all these amounts and that gives you the total charges.

Next you look at the total credits. Credits start with disbursements, amounts that are paid out by the Trustee for bills and expenses; then distributions to beneficiaries and losses on sale. The final piece is a list of the assets on hand at the end of the accounting period. Again, each of these items has a corresponding schedule that details the information. You add up the total for each of these items and that gives you the total credits.

For a Trust accounting to balance the charges must equal the credits. The summary of charges and credits typically looks like this:


Assets on Hand at Beginning of Accounting (Schedule A)……………… $1,000,000

Income Received (Schedule B)…………………………………………………………………………….. $100,000

Gains of Sale (Schedule C)…………………………………………………………………………………………. $50,000

Total Charges……………………………………………………………. $1,150,000


Disbursements (Schedule D)…………………………………………………………………………………… $75,000

Distributions (Schedule E)……………………………………………………………………………………… $500,000

Losses of Sale (Schedule F)……………………………………………………………………………………….. $25,000

Assets on Hand at End of Accounting (Schedule G)……………………………….. $550,000

Total Credits…………………………………………………………….. $1,150,000

As long as the total charges match the total credits, the accounting balances. If those two numbers are off, then there may be a problem.

But how far off does an accounting have to be in order to have a real problem? Typically small discrepancies will be allowed. For example, a $40 or $50 discrepancy is not enough of a problem to warrant any type of court order. Of course, it really depends on the size of the estate and the judge who is passing judgment on the accounting.

There is always an answer somewhere as to why any accounting is off. Accountings are just a collection of numbers. Usually the problem lies in a missing bank statement that has some bank charges or fees listed on them. Once all the information is located, it can be properly entered and the accounting should balance.

It is not a hard job to prepare an accounting, it just takes a lot of time, patience, and perseverance. Good luck!

What To Do When Your Accused of Estate Theft?

Posted in Litigation


When a Trust or Will fight breaks out, the allegations get nasty really quickly and it often is alleged that one of the parties (or both) stole from the estate. In fact, we even have a Probate Code section (see section 850) that allows a Trust or estate to recoup money and property that belongs to that Trust or estate. What should you do when you are accused of stealing Trust or estate property?

For a start, you have to fight the claim (unless you really did steal something, in that case settlement quickly). Most of the time, claims of theft revolve around disagreements as to the nature of a property transfer. Was something a gift before death or not? Did the decedent have capacity to make a gift? Did someone buy the property for fair market value? Was the property ever even an asset of the Trust to begin with?

If you are on the receiving end of a theft claim, you have to take action. You cannot simply allow someone to get a judgment or court order against you because then it will be too late to act (and too late to defend yourself). Unfortunately, claims can be made against you even when they are flimsy. And you have little chance to recoup your costs to defend yourself. Under the American legal system, each party pays its own costs and attorneys fees in any lawsuit regardless of who prevails, unless there is a specific exception to the contrary. Yes, there is a law against filing frivolous lawsuit (called a malicious prosecution action), but those types of claims are rarely successful because our courts’ are reluctant to shift fees between parties.

All in all, it can be a frustrating situation that requires you to spend your hard-earned money to defend yourself against flimsy arguments, but so it goes. It is better, however, to defend yourself against flimsy claims than to suffer the consequences of a default judgment or order taking your property away from you.

Being Threatened by the Trustee? The empty threat of no-contest clauses

Posted in Beneficiary, Litigation, Trustee Breach of Trust, Trustee Removal

Are You Being Threatened with a Trust

Nearly everyday I hear from a Trust or Will beneficiary that they have been threatened with the No-Contest clause by their Trustee or Executor.  In today’s legal world, no-contest clauses are rarely enforceable.  And yet, the threat is made.  Learn what you have to fear, if anything, about your Trust or Will no-contest clause.

Can You Disinherit a Bad Trustee? The Tricky No-Contest Law in California Trust and Will Cases

Posted in No Contest Clauses, Trustee Breach of Trust, Trustee Removal

Can a Bad TrusteeLose it All?

The ever confusing Trust and Will no-contest clause is continually being used and abused in California Trust and Will lawsuits. The irony is that a beneficiary is rarely, if ever, disinherited under a no-contest clause any more because the law is favorably skewed to prevent forfeiture. In other words, no-contest clauses simply do not apply except in the most extreme cases (and your case is not extreme no matter what you think). Not only must you meet the requirements of the Probate Code for a no-contest clause to apply, you must also be acting without probable cause—a nearly impossible standard to meet. If you don’t meet the standard, then you are not in danger of being disinherited regardless of the legal action you file.

But what about a bad Trustee, can he be disinherited under a no-contest clause if he breaches his duties as Trustee? The short answer is no, but why not?

The first rule of no-contest clauses is that you must undertake an action that is specifically listed in the no-contest clause as being a triggering event. More than that, Probate Code section 21310 specifically limits the actions a no-contest clause can affect. Actions that can be used to trigger a no-contest clause are limited to: (1) direct contests of a document (meaning you are trying to overturn a Trust, Will, or Trust or Will amendment), (2) creditors’ claims, and (3) challenging the characterization of property as being either community or separate. Further, a no-contest clause will not apply where someone acts with probable cause of success.

Notice how there is no mention of disinheritance for a bad Trustee?  That’s because there no basis to disinherit a bad Trustee just for breaching a duty to the Trust.  In fact, I have never seen a no-contest clause that includes a provision that triggers disinheritance if a Trustee/beneficiary breaches his duties as Trustee. But even if a Trust or Will no-contest clause had such a provision, it would be unenforceable because only the items outlined in the code can be enforced for no-contest clause purposes.

So that means a bad Trustee who is also a beneficiary will not be disinherited due to his bad actions as Trustee. But the Trustee is not off the hook for engaging in breaches of Trust. The Trustee can still be held liable for any damage that is caused as a result of a breach of Trust, and those damages can be taken out from the bad Trustee’s share of the Trust estate. Unfortunately, that only occurs when a court orders it.  That means the burden is on you to file your lawsuit, prove your case at trial, and get your order surcharging the Trustee for damages.

Robin Williams Estate Fight: Sweating the small stuff, in a big way!

Posted in Litigation, Trustees & Beneficiaries

RW dates Photo

Personal property can be, well, so personal. The family of late comedy legend Robin Williams is in a heated battle over the personal items Robin Williams left behind. The estate fight pits Robin Williams’ widow, Susan Williams, against his three children from a prior marriage, Zachary, Zelda, and Cody.

While we do not know exactly what personal items they are arguing over, the Trustees of Williams’ Trust claim they have compiled a list of over 900 items on a 23-page spreadsheet. The Trustees claim that they have “final and absolute” powers to decide who gets what, but Susan Williams seems unpleased by their decisions. In court filings made last Friday (August 14, 2015) all sides reported their status to the Court, with the children asking the Court to order Susan Williams to hand over the personal items within seven days.

What may be surprising is that even though the trustee are given “final and absolute” power to decide, that power still must be exercised in good faith. In other words, no Trustee, no matter how broad their powers, has unfettered control over Trust property. This “good faith” standard may be enough for Susan Williams to argue for a greater share of the personal items.

Also at issue is the amount of money that should be set aside to maintain the Williams’ estate, where Susan is allowed to live for the rest of her life. Under the Trust terms, the estate must be maintained at the same standard as the couple enjoyed while Robin Williams was still living. The parties claim to all agree that the Trust needs to have money to provide for maintenance, but the amount required as a set aide is still at issue.

The Trustees of the Robin Williams Trust are asking the Court to dismiss Susan’s petitions because all of the issues have already been addressed, according to the Trustees. But that may not be entirely true from Susan Williams’ perspective. The division of personal property, especially items that occupy Susan Williams’ home, can be a sensitive issue. And the amount of money to safely provide for care on Susan’s home can also be a continuing source of disagreement.

Luckily for Susan Williams, the Probate Court is a court of equity in California, meaning that the Court has a wide amount of discretion to make rulings that benefit all of the beneficiaries in this case.

Check in for more updates on the Williams estate as the case progresses.

A&D in the O.C.! And Los Angeles, and San Francisco!

Posted in Litigation


Alberson & Davidson FirmOur partner Gian Ducic-Montoya is stepping out to open our newest office in Irvine, located on the corner of Jamboree and MacArthur in the heart of Orange County. Our Orange County office has been a long time in the making, and we are excited to help Orange County residents with their Trust and Will disputes. The new address is 19800 MacArthur Blvd, Ste 300, Irvine, California, and the number is 949-608-0040.

At the same time, Gian is also overseeing our expansion into Los Angeles, with office space in Downtown Los Angeles just a stone’s throw from the L.A. courthouse where all probate matters County-wide are heard. We currently have quite a few cases pending in Los Angeles County Superior Court and our new Los Angeles location will help us better assist L.A. based clients. Our L.A. office address is 633 W. 5th Street, 26th Fl, Los Angeles, California, and the number is 213-670-7940.

Albertson & Davidson Law FirmWhile we are at it, we have also opened a new location in the heart of the Financial District in Downtown San Francisco. With help from partner Heather Côté, we will be able to help clients in the City of San Francisco.  Our new San Francisco office is located at One Market, Ste 3600, San Francisco, California, and the number is 415-685-0909.

Wherever you are located throughout the State of California, we have an office to serve you. If you need some advise about a Trust or Will matter, feel free to call us.